The Development of an Aboriginal Criminal Justice System: The Case of Elsipogtog

By Clairmont, Don | University of New Brunswick Law Journal, January 2013 | Go to article overview

The Development of an Aboriginal Criminal Justice System: The Case of Elsipogtog


Clairmont, Don, University of New Brunswick Law Journal


INTRODUCTION

This paper focuses on the development of a comprehensive community-based Aboriginal criminal justice system in Elsipogtog New Brunswick, the apex of which has been its Healing to Wellness Court (HWC) which became operational in 2012. Initially the authoritative and policy context for Aboriginal Justice which facilitated this emergence is examined. Subsequently, the local Elsipogtog context, a decade-long struggle for social order is considered, primarily from the perspective of policing. The third section deals specifically with the emergence of the HWC, its special features and challenges for Aboriginal justice. (1)

I. AUTHORITATIVE AND POLICY CONTEXT

The signal events in the past 30 years that have shaped the context for justice possibilities for Aboriginals in Atlantic Canada have been (a) the Constitution Act, 1982 ("the existing Aboriginal and treaty rights of Aboriginal peoples of Canada are hereby recognized and affirmed"); (2) (b) the 1989 report of the Hickman Inquiry on the Wrongful Prosecution of Donald Marshall Jr. (bearing most specifically on the Mi'kmaq in Nova Scotia but having rippling effects throughout Atlantic Canada); (3) (c) the 1996 Royal Commission on Aboriginal Peoples (RCAP) report, Bridging The Cultural Divide, which laid out a revitalizing agenda for Aboriginal justice in Canada; (4) (d) the Supreme Court of Canada's (SCC) 1999 Gladue decision which was a culmination of earlier court decisions and sentencing policies and emphasized the unique considerations that should be taken into account by judges when sentencing Aboriginal offenders; (5) (e) the SCC's 1999 rulings in the case of Donald Marshall Jr's conviction for illegal eel fishing (a regulatory conviction whose overturning by the SCC had profound effects for Aboriginal economic development and Aboriginal regulatory governance, attacking the roots of First Nations' (FN) social problems). (6)

The Hickman / Marshall Inquiry impacted most directly on Nova Scotia but its ramifications were important as well in New Brunswick and PEI. The three Royal Commission commissioners determined that the wrongful prosecution of Marshall in 1971 was directly a function of the fact that Marshall was Aboriginal and that Nova Scotia's justice system had been "racist and two-tiered", a damning indictment by respected, mainstream judges. The Inquiry's recommendations were wide-ranging, extending well beyond redress for Marshall and Aboriginal issues to the organization of policing and prosecutorial services in Nova Scotia and advancing new policies to respond to the problems of disclosure, wrongful prosecution and political interference. The Inquiry has had a profound impact on issues of Aboriginal justice in Nova Scotia (7) generating initiatives such as restorative justice programs, and regular provincial court sittings on the largest FN, Eskasoni; currently, a wide range of province-wide Aboriginal justice services are provided through the Mi'kmaq Legal Support Network (MLSN) which may well be the most effective and well-established multi-FN, Aboriginal justice programming in Canada. (8) The Inquiry's report was generally seen as progressive by First Nations and, overall, was favourably received by the Union of Nova Scotia Indians which emphasized that "We agree with the principle that change must be community-based and, in implementing a justice system on Mi'kmaq communities, it will require the active involvement of community members. A broad base of community acceptance and community support are essential for any initiative to succeed". (9) The Inquiry's recommendations have mostly been implemented; indeed, the justice services provided by MLSN in some ways have gone well beyond them. A key factor in this progress has been the Inquiry's recommended Tripartite Forum on Native Justice whereby high-ranking federal, provincial and Mi'kmaq representatives meet regularly to monitor current justice initiatives for the FNs and consider new ones.

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